20/11/2018

The dangers of CPR 38.7: two bites of the cherry?

Saulawa & Another v Abeyratne & Another [2018] EWHC 2463 (Ch)

The court considered the requirements under CPR 38.7 for granting permission to bring a fresh claim arising out of the same facts as a claim which had been discontinued. On the facts of this case, the fresh claim was a re-run of a claim that had been settled by a settlement agreement and consent order some three years previously. The court considered that there should be a natural reluctance to allow re-litigation of a settled dispute. To do so would undermine certainty and finality and could allow for oppression of an innocent party. The court reviewed factors to be considered in a CPR 38.7 application and also confirmed that permission should be sought prospectively under CPR 38.7, not retrospectively. In this case, the court found that seeking to bring the fresh claim in the same terms as the original claim amounted to an abuse of process and ordered indemnity costs against the applicant party.

Angharad Parry (instructed by Balfour and Manson LLP) acted the defendants.

Angharad Parry has written an article regarding the case which has been published on LexisNexis. Please see the PDF below for the full text.